United States District Court, S.D. Indiana, New Albany Division
STEPHEN R. WEST, Plaintiff,
LOUISVILLE GAS & ELECTRIC COMPANY, Defendant.
ENTRY ON DEFENDANT'S MOTION TO DISMISS
RICHARD L. YOUNG, CHIEF JUDGE
Louisville Gas & Electric Company, has an easement on a
parcel of land owned by Plaintiff, Stephen R. West. Plaintiff
maintains that Defendant has exceeded the scope of the
easement by allowing a third party to install fiber optic
cable on the property. He consequently filed this lawsuit,
alleging four counts: (1) declaratory judgment to establish
the scope of the easement, (2) trespass, (3) unjust
enrichment, and (4) breach of contract. Defendant now moves
to dismiss the Complaint with prejudice pursuant to Federal
Rule of Civil Procedure 12(b)(6), arguing that the plain
language of the easement explicitly allows for such use. The
court finds that there is a dispute of fact precluding
dismissal, and therefore DENIES Defendant's motion.
owns a parcel of real estate in Jeffersonville, Indiana,
located at 51 Arctic Springs Road (the
“Property”), which he acquired from his parents.
(Filing No. 1-1, Complaint ¶¶ 4, 8). The Property
includes a tower, approximately 248 feet in height, which is
used by Defendant to run utility lines over the Ohio River.
(Id. ¶ 5). Defendant operates the tower
pursuant to an easement, the history of which is discussed
1938, the Interstate Public Service Realty Company granted an
easement to the Public Service Company of Indiana
(“PSCI”) (the “1938 Easement”).
(Id. ¶ 6; Filing No. 1-1, Exhibit A). As
grantee, PSCI received
a right-of-way and perpetual easement to maintain, operate,
renew, repair and remove a line or lines of poles and towers
and all necessary equipment, wires, cables and appurtenances
in connection therewith, for the transmission, distribution
and delivery of electrical energy to the Grantee and other
persons and concerns and to the public in general for light,
heat, power, telephone and/or other purposes.
1970s, Plaintiff's parents, Billy and Barbara West,
acquired the Property. (Complaint ¶ 8). Subsequently, on
July 8, 1976, PSCI assigned its rights in the 1938 Easement
to the Ohio Valley Transmission Corporation
(“OVTC”), a subsidiary of Defendant.
(Id. ¶¶ 2, 9; Filing No. 1-1, Exhibit B).
In August 1976, the Wests entered into a Supplemental Deed of
Easement with OVTC regarding the 1938 Easement (the
“First Supplemental Agreement”). (Complaint
¶ 10; Filing No. 1-1, Exhibit C). In the recitals, the
First Supplemental Agreement discusses the 1938 Easement and
the assignment, and then explains that OVTC “desires to
replace the existing transmission lines and upgrade its
facilities and wishes to update said easements so as to
specifically define the rights of the parties.”
(Exhibit C at 1). The agreement then provides,
Grantors hereby convey and re-convey to the Company all
rights heretofore acquired by the Company or its
predecessors, including the perpetual right, privilege and
easement to enter upon, construct, reconstruct, replace,
upgrade, maintain, operate, and/or remove, one or more lines
for the transmission of electrical energy, together with any
and all towers, poles, guys, stubs, anchors, foundations, and
other necessary equipment, fixtures and appurtenances over,
across, and within the existing 100 feet wide easement, a
part of or all of which crosses the property of Grantors . .
(Id. at 2).
late 1990s, Defendant approached Plaintiff's parents and
asked them to enter into a second Supplemental Deed of
Easement (the “Second Supplemental Agreement”).
(Complaint ¶ 12; Filing No. 1-1, Exhibit D). The Second
Supplemental Agreement provides,
[I]n addition to all rights granted to the Company in the
Existing Easement, the Owner does hereby further grant and
convey unto the Company the right and easement to construct,
maintain, operate, repair, replace, upgrade and remove
communication and telephone systems, including all equipment,
facilities and lines appropriate in connection therewith,
over, across, and under Owner's property . . . .
(Exhibit D at 1). Plaintiff's parents refused to accept
the proposal, and the Second Supplemental Agreement was never
executed. (Complaint ¶ 12; Exhibit D at 2-3).
filed this action because unbeknownst to him or his parents,
Defendant subsequently entered into an agreement with Time
Warner Cable (“TWC”) to lease space on the tower
in order to run fiber optic cable over the Property.
(Complaint ¶ 13). TWC's fiber ...